Effective Date: January 1, 2023
1. Overview and Scope
This Agreement lays out the terms for Advertisers to place ads (digital) or branded content with There Media Group LLC (“Publisher”). It encompasses (a) advertising placements; (b) ad content creation and digital marketing services; and/or (c) branded content/native advertising (“Services”). If there’s a conflict between these terms and any proposal or other communication from the Advertiser, these Terms and Conditions prevail unless overridden by a written and mutually signed proposal.
2. Term of Agreement
The Term per proposal details either as “the Term” or the duration of the Services, such as the timeframe of ad or branded content campaigns. Services commence on the proposal-stated date and conclude upon final product delivery or as otherwise mentioned in the proposal. In instances of recurring Services, the Term auto-renews monthly post the initial term unless the Advertiser provides a written non-renewal notice minimum 30 days before the end date.
3. Representations, Warranties, and Legal Compliance
Advertiser must ensure:
- Full authority to enter and execute this Agreement.
- Adherence to all applicable laws and no violation of contracts with third parties through this Agreement’s execution.
- Absence of damaging computer viruses or code in submitted materials.
- Adherence of materials and campaigns to relevant laws, and non-infringement on third party rights (e.g., copyrights, privacy).
4. Ad Publication Services
4.1 No Legal Review
Publisher does not conduct legal reviews of Ads or branded content.
4.2 Ad Preparation Upon request
Publisher may assist in Ad preparation, retaining all rights to layouts or elements prepared by them, with Advertiser responsible for ad contents and compliance with regulatory laws.
4.3 Ad Acceptance
Ad submission doesn’t guarantee publication, with the decision to publish resting solely with the Publisher.
4.4 Client Material Delivery
Timely provision of Client Material for Ads is the Advertiser’s responsibility, with delays potentially leading to extra charges or date changes. Non-conformity with the Order may alter prices, and Publisher reserves the right to reject material violating advertising standards or applicable laws.
4.5 Ad Revision and Rejection
- Publisher has the right to revise, reclassify, or reject any ad material at any time for any reason.
- Material alterations to meet technical specifications are permissible.
4.6 Ad Positioning
Any position requests are treated as non-binding and non-breaching.
4.7 Ad Labeling
Ads resembling news matter will be clearly labeled as “Advertisement” or another suitable term.
5 Digital Ads Specifics
5.1 Ad Material Delivery
- Final technical specifications for digital ads are available electronically.
- Late delivery may affect the guarantee of full IO (Insertion Order) delivery.
5.2 Ad Rejection Notification
Advertiser will be informed if an ad is rejected due to unsatisfactory quality or inappropriate content.
5.3 Ad Alteration or Removal
Ads can be replaced or canceled with 48 hours prior written notice.
5.4 Counting Digital Impressions
Impressions are counted per Publisher’s standard, regardless of viewability or whether served to an end user or a third party ad server.
5.5 Ownership of Digital Content
- Publisher retains ownership of all content and data, excluding Client Material.
- Publisher can use any code, design, or concept in future works for itself or any third party.
5.6 Usage of Collected Digital Data
Client can use campaign data for retargeting users or appending non-public user profiles provided compliance with applicable laws and guidelines.
5.7 Email Campaigns Terms
5.7.1 Email Ad Content
Advertiser provides images and content for email ads. Any additional content needed is added by Publisher’s service provider.
5.7.2 Ad Approval
Advertiser has 2 business days to object to an ad; otherwise, it’s deemed approved.
5.7.3 Cancellation Policy
Email campaign IOs cannot be canceled once submitted due to immediate commencement of work and expense incurrence.
6 Financial Terms
- Client agrees to pay according to the rates in any agreed upon order or rate cards.
- Conflicts between orders and rate cards favor the order.
6.2 Payments and Disputes
Invoices are payable within 30 days of issuance.
Unpaid accounts may lose credit privileges, and payment method changes must be communicated.
6.2.3 Invoice Disputes
Disputes must be communicated within 30 days of invoice receipt.
6.2.4 Late Payment
Clients bear costs related to collection of overdue amounts.
6.3 Rate Changes
Publisher may alter rates at any time; client can terminate agreement with notice.
Prices exclude all applicable taxes; advertisers bear all related costs.
7 Liability for Errors/Omissions/Cancellations
For All Placements:
- Clients must check and are responsible for ad errors.
- Publisher liability for errors is limited to ad cost and doesn’t cover client or deadline-missed errors.
- Written confirmation is needed for orders, corrections, or cancellations.
8 Content Creation/Publication; Paid Posts
8.1 Unacceptable Forms of branded content
For branded content prepared by Client and provided to Publisher, under no circumstances will Publisher accept Paid Posts that: relate to adult entertainment or contain vulgar or obscene language, cigarette, e-cigarette or other tobacco ads; include claims of occult powers; involve trafficking in endangered species or related products; promote medical or weight loss services or supplements that do not meet Publisher advertising/branded content standards or violate relevant state law; are false, deceptive or misleading; defame another person or company; violate rights of privacy or rights of publicity, unlawfully appropriate any name or likeness, or otherwise injure the rights of any person, product, firm, corporation or entity; are illegal; are distasteful, e.g. before-and-after photos; violate a contract; contain claims of professional “superiority” unless substantiated with scientific evidence; constitute unfair competition; contain sweepstakes or contests, unless the branded content with the sweepstakes or contests contain the required disclosures under federal and state laws (Advertiser is responsible for complying with all such required disclosures); violate any copyright, trademark, or other intellectual property right, or proprietary, personal or other right of any person, product, firm or corporation, or entity; and/or have the potential to damage any of Publisher’s brands, personnel, or services, as judged solely by Publisher, which can and will be refused, or modified to remedy the problem.
8.2 Style and Labeling
- If advertising content is labeled “From Our Advertisers,” “Ad” or “Advertisement,” these labels will appear before the content, but no disclaimer is necessary.
- Client may not re-direct URLs (or hyperlinks) contained in any Paid Posts in a manner that is misleading to a reasonable consumer.
- Paid Posts will not be indexed as news in any Publisher site map. Paid Posts will have “no follow tags.” Any accompanying links to Client and/or other promotional content will have “no follow tags.”
9 No Guarantees and Acceptance of Risk
9.1 No Assurances
There are no explicit or implicit guarantees regarding the outcomes, audience, or traffic of any provided services.
Clients purchasing services accept the inherent risks and agree that unfavorable outcomes will not result in liability for Publisher.
10 Client’s Role in Providing Information and Materials
- Materials provided by the client should be accurate, lawful, and delivered on time. Delays or inaccuracies can impact the service delivery by the Publisher.
- Client delays in responding in a timely manner can impact the service delivery by the Publisher.
- Client delays in providing materials can result in project pauses or termination.
- The Publisher may dispose of materials unless return arrangements are made.
11 Using Third-Party Content
Client must show they have the rights or licenses to use third-party materials in content developed. Alternatively, if using stock images from the Publisher, the client cannot distribute them further without a separate licensing agreement.
12 Approval and Legality of Content
- Publisher will provide content and await the client’s approval, without taking responsibility for legal reviews. Client’s delays or non-responsiveness in approval can cause project holds.
- For Search Engine Marketing (SEM) and Social Media services, client approvals are needed for specifics like keywords and content calendars.
- Publisher will revise rejected deliverables, but continual rejections allow either party to terminate the project.
- Scope changes need formal change orders, and client delays can impact service delivery and billing.
13 Rush Requests
If a client wants to expedite project timelines, a Change Order must be submitted, and it’s subject to additional fees if Publisher can accommodate the rush.
14 No Involvement in Contests or Sweepstakes Services
Publisher will only promote, not manage, client’s contests or sweepstakes and doesn’t hold responsibility for legal compliance in these activities.
Fees for the Services payment schedules are detailed in the proposal and/or invoice. The Client is responsible for all tax-related aspects, and billing continues even if the client fails to provide necessary materials or responses. Refund conditions are specified and setup fees are non-refundable.
16 Ownership and License to Content, Websites, End User Data
- All rights in Client Material remain with the Client, subject to license granted in Section 23.
- End User Data belongs to the Client, who grants Publisher a limited usage license.
- Websites developed may utilize WordPress and other software, with clients granted a revocable license under certain conditions.
- Publisher owns copyrights in Content they create. A license, subject to conditions, may be granted to the Client to publish this content under strict terms.
- Rights to Services and Content (excluding Client Material and Work-for-Hire Content) are retained by Publisher and its licensors, with the Client acknowledging their limited rights as stipulated in this section.
The Client and Publisher agree to defend and indemnify each other, including affiliates and related entities, from losses, damages, and other liabilities arising from breaches of agreements, negligent actions, creation or publication of branded content, or claims related to their products/services. Publisher’ obligations are limited in certain aspects related to content creation and digital marketing services. The obligations and liabilities related to intellectual property infringement are confined to this section.
18 Limitation of Liability; Disclaimers
Both parties limit their liabilities to exclude consequential, incidental, and certain other damages, and cap their liabilities to amounts paid under the relevant proposal. Publisher disclaims all warranties not expressly stated in the agreement, providing services on an “as is” basis. No liability is accepted for various aspects, such as the number of persons accessing online advertisements or any benefits the advertiser might obtain from any advertising.
19 Advertiser Represented by Agency
Representatives and Agencies acting on behalf of an Advertiser warrant that they have the authority to do so. Both are held jointly and severally liable for each other’s obligations. The Agency shall satisfy obligations for all services and is held liable for payments, regardless of whether it receives payment from the Advertiser. The Agency may need to provide confirmation of their relationship and authorization to act on behalf of the Advertiser upon request.
20 License to Client Material and Trademarks
This section outlines the licensing rights granted by the Client to the Publisher (Publisher). The Publisher receives rights to utilize the Client’s Material and Trademarks for promoting the fact that the Client is a customer of the Publisher, and for service provision. The Client holds responsibility for compliance with third-party licenses for materials like stock photos and doesn’t gain rights to use the Publisher’s trademarks.
21 Reservation of Rights
Publisher can, without notice, modify, refuse to publish, or remove any Client Material from any platform for any reason. However, it will attempt to inform the Client and provide reasons for such actions. It can also preserve and disclose Client Material to comply with laws, regulations, respond to support requests, address technical issues, and safeguard its rights and the public’s safety and interest.
The Publisher may disclose Confidential Information to the Client, who, in turn, is obligated to protect this information and utilize it only for purposes related to the Agreement. The Client is prohibited from disclosing the Confidential Information to unauthorized individuals and is responsible for breaches by its representatives or agents. The Client must return or destroy Confidential Information upon the Publisher’s request.
- Client shall have the right to terminate this Agreement as to one or all applicable orders at any time by written notice to Publisher.
- Publisher shall have the right to terminate this Agreement as to one or all applicable orders for any reason and at any time by written notice to Client.
- Client shall be liable for advertising prior to such termination at the Current Agreement Rate.
- The unpaid balance of such adjusted Amount Due shall be based upon the actual realized advertising activities performed during the Term.
24 Other Terms
24.1 Force Majeure Events.
Except for payment obligations, neither party will be liable for delay in or failure to perform any obligation required under this Agreement to the extent such delay or failure is caused by any occurrence beyond the reasonable control of that party, including but not limited to fire, flood, acts of God, war, riots, public emergency or necessity, labor disputes or strikes, unavoidable accident, government action or orders, legal restrictions, electronic or electrical interference, power outages, failures of the Internet, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product (“Force Majeure Event”).
Advertiser may not resell, assign, or transfer any of its rights or obligations under this Agreement without the prior written consent of Publisher. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect.
24.4 Relationship of Parties
Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
24.5 Governing Law and Venue
This Agreement, including all proposal documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the State of California. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California.
24.6 Complete Agreement, Modification, and Waiver
This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, understandings and agreements of the parties, oral and written, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.
All sections that are reasonably expected to survive termination of this Agreement shall survive termination of this Agreement.